Charter Yachts (Qld) Pty Ltd T/A Charter Yachts Australia

[2020] FWC 5977

[2020] FWC 5977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Charter Yachts (Qld) Pty Ltd T/A Charter Yachts Australia
(AG2020/2265)

DEPUTY PRESIDENT LAKE BRISBANE, 6 NOVEMBER 2020

Application for termination of the Charter Yachts (Qld) Pty Ltd t/a Charter Yachts Australia Employee Collective Agreement 2009.

[1] On 3 August 2020, Charter Yachts (Qld) Pty Ltd T/A Charter Yachts Australia (the Applicant) applied to the Commission under s.225 of the Fair Work Act 2009 (the Act) for termination of the Charter Yachts (Qld) Pty Ltd t/a Charter Yachts Australia Employee Collective Agreement 2009 (the Agreement).

[2] I note the application was made under s.225 of the Act. The Agreement is a collective agreement which was formed under the Workplace Relations Act 1996, and as such the application was made under the incorrect section of the Act and on the incorrect form.

[3] The matter was allocated to me for consideration. My Chambers wrote to the Applicant on 21 August 2020 and advised that it appeared that the agreement was made under the incorrect section and form. I invited the Applicant to review their application and attached a copy of the Form F28, requesting that they refile the correct application and discontinue the current application. The Applicant was requested to provide a response to Chambers by 28 August 2020.

[4] No response was received from the Applicant. On 3 November 2020, my Chambers wrote again to the Applicant and advised I was minded to close the file due to inactivity, or alternatively dismiss the application under s 587 as it has no reasonable prospect of success, given it was lodged incorrectly.

[5] No further correspondence or telephone contact has been received from the Applicant to date.

[6] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[8] I note that generally the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2 In this case, however, I note that there are no associated timeframes for applying to withdraw an application for termination of an agreement. There is no lodgement fee and there is no disadvantage to the Applicant in dismissing the application given it was made on the incorrect form and under the incorrect section of the Act.

[9] I further note that the application was made on the incorrect form and under the incorrect section. Accordingly, I am satisfied that the application has no reasonable prospects of success and should be dismissed.

[10] I note that the Applicant has failed to respond to correspondence from my Chambers in relation to the matter. The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various correspondence from Chambers, and has failed to file any material in the matter beyond the initial application form and has not contacted Chambers at any stage. There has been a significant delay between the filing of the application, my initial correspondence to the Applicant, and this decision. The Applicant has shown no willingness to prosecute his case and taken no steps to do so.

[11] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[12] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution, and on the basis that it has no reasonable prospects of success as it was made under the wrong section of the Act.

[13] The application is therefore dismissed under s.587 of the Act. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724361>

 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12]

 3   [2011] FWAFB 7498 at [19]